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You have to wonder if folks in the Santa Barbara County District Attorney’s Office are happy with this one. Tuesday afternoon in Judge Brian Hill’s courtroom, former medical cannabis club owner Joshua Braun — a man who was once described by members of area law enforcement as a “sort of Svengali of Southern California’s medical marijuana scene” and who, along with his wife, Dayli, had a $1 million bail imposed when he was first arrested for marijuana and money laundering-related crimes in the early summer of 2010 — was sentenced to no more than 180 days in County Jail following a plea deal he and several codefendants brokered in August.

The ruling, once you factor in time served, our overcrowded jail, and California’s “half-time” waiver for nonviolent criminals, will likely result in Braun being put on some sort of house arrest or in a work release program before facing five years of felony probation. “This is not a guy who robbed a bank or just molested a child. He is not a risk to public safety,” explained Hill in handing down the sentence, before adding to Braun directly a few moments later, “I have no doubt you will be a success in the future.”

Paul Wellman

Judge Brian Hill

Hill’s decision was certainly not what the prosecuting attorney, Deputy DA Von Nguyen, was hoping for. Taking exception with the judge’s decision to hand down a sentence that, though echoing the Probation Department’s recommendation, was a far cry from her preferred position of 240 days in jail and immediate remanding into custody for Braun, Nguyen argued unsuccessfully for Hill to think about the impacts of criminal behavior beyond just threats to public safety. Saying that Braun knew all along that he could likely run into trouble with the law for the way he did business at Hortipharm, his medical marijuana storefront on upper State Street, Nguyen explained her frustration, “There were risks involved and he knew it … For him to just get a slap on the wrist sends the wrong message to the community.”

At the crux of Hill’s decision was what he repeatedly referred to as the “lack of clarity” in the state’s various medical marijuana laws. In the case of Braun, who ultimately pled to one felony count of marijuana sales and one misdemeanor count of money laundering after being indicted on several dozen felony charges by the Grand Jury last spring, it was the ambiguity over what exactly constituted legal behavior and monetary compensation for a person who runs a collective that provides medical marijuana to patients. At the heart of Senate Bill 420 and the corresponding state Health and Safety Codes that help flesh it out is a concept that medical marijuana cannot be distributed for profit, though “fair compensation” is allowable for the “primary caregiver” (i.e., he or she who provides the herb). For Nguyen, there was no question that Hortipharm — as evidenced by the Brauns’ two houses and assorted material possessions — was being run as a for-profit outfit and thus in flagrant violation of the law. “I believe if you are a primary caregiver you can be reimbursed and that is the end of it,” said the prosecutor. “I do not believe that the law ever intended for places like Hortipharm.” She continued that Braun did not, at least in her reading of the law, even meet the legal definition of what a primary caregiver is meant to be and that cash compensation of any kind for medical marijuana was potentially illegal.

Braun’s attorney, Josh Lynn, who himself is a former S.B. County Deputy DA, scoffed at Nguyen’s interpretations. “Profit is not permitted but compensation is more complicated than that,” he explained, before recounting the recent discovery that the head of the United Way, a nonprofit, took home roughly half a million dollars a year. Making the point that Hortipharm was being run as an officially recognized mutual benefit corporation (the first stages to becoming an actual nonprofit) at the time of its raid, Lynn opined, “Nonprofits must still compensate their employees for the business to continue.”

For his part, Braun — who had a good turnout of friends and family in the audience and, prior to this week, had not had the opportunity to publicly defend himself in a courtroom — took the occasion to explain the impact this ordeal has had on him and his young family. Choked with emotion, Braun told Hill, “I came into this thinking I was going to change the world … But I am leaving here today a felon. I lost and I lost a lot.” He went on to describe how, over the years, he had toured the Santa Barbara police chief, then-Santa Barbara Mayor Marty Blum, the Civil Grand Jury, and several other law enforcement officers through Hortipharm in an effort to be an example of a medical marijuana dispensary done right. “I absolutely believed I was following the letter of the law and not just because of what my lawyers told me,” said Braun. “It was always my intention from the beginning — it was fundamental to my philosophy — to work within the law … And I still think we did that.”

In the end, Hill admitted to seeing both sides of the proverbial coin. “I do think that the evidence suggests pretty strongly that there was a profit motive going on here,” said Hill about Braun’s business practices, but added, “A part of the problem, for both sides, is that there is a lack of clarity about what people in Mr. Braun’s position can and cannot do.” It was because of this confusion, said Hill, that a plea deal, one that found “middle ground,” was an appropriate outcome.

Comments

From the previous linked article, it states>> "He’s also required to forfeit all his cash assets, his car and power boat, and pay some $8,000 in restitution fees to Southern California Edison for electricity stolen at a residence he owned that was being used as a grow house."<<

So the final sentence is on what charge? I could understand some sentencing for the 'stolen electricity' if proven but why forfeit the possession and what exactly is the jail time for; the ambiguity in the law?"

Having a house to live in, and a car and perhaps another house to grow the caregivers product in doesn't seem out of the ordinary.

The only thing that seems illegal is the 'stolen electricty' and if proven stolen is something to sentence on.

How was cash forfeited? How much in cash are people not allowed to have in their possession, especially with corrupt banks operating the way they do.

The power boat should be shredded on environmental grounds, but it is not illegal to own one.

Sounds like the totality of Brauns' success is that he should be considered as American as apple pie, his possessions and cash returned. Other than of course except for the accusation of stolen electricity, what was the crime?

Well, DonMcDermott, it does say in the first paragraph, "who, along with his wife, Dayli, had a $1 million bail imposed when he was first arrested for marijuana and money laundering-related crimes in the early summer of 2010". This must particularly sting DA Dudley since his attorney was would-be DA Josh Lynn.

Have the District Attorneys in the Santa Barbara County office ever been to Law School? If so, did they cut class and smoke pot when their Law Class studied the Constitution of the USA?Here is the 10th Amendment to the Constitution, which exposes this case, and the S.B. D.A's office as a fraud."The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."Ratified 12/15/1791

Newocean-Smoke less pot when you use an illiterate understanding of current constitutional law to make your point. There's several thousand cases since the 10th Amendment was written making it far less simple. Roe v. Wade comes to mind and yet most of us(including me) support that particular aberration... Like this guy had NO IDEA he was working in a gray area when he was creating his enterprise? I wish pot was decriminalized at a minimum but caveat emptor still applies.

Re non-profit compensation: Compensation to the CEO of the Santa Barbara Council on Alcoholism and Drug Abuse ( Penny Jenkins), which provides court-ordered drug treatment, based on their 2009-2010 990, was around $179,000. CADA's assets are listed as over 7.337 million. SB city used low-income housing funds to buy the property on DeLaVina that they're renting below market value from the SB Housing Authority.We have local government for the support of employees and contractors to local government, and funding this requires requires gouging businesses not affiliated with government to the max.We're not trying to arrest anonymous drug dealers who don't have business licenses or pay taxes, we're trying to destroy people doing their best to comply with the law, and we're spending money we need for education and services to local residents to do this.

I agree 14noscams. The problem is that anyone "...doing their best to comply with the law,..." does so at their own risk since the laws are a mess. This is not unique. Plenty of regular businessmen would be working in this same arena and therefore bringing the price of pot down due to good old American hard work and ingenuity if it were not for the ambiguity.

I think the real crime here was the hundreds of thousands of dollars of assets that were forfeited (*stolen*) from the Braun family. This practice of legalized theft should be ended as it creates a moral hazard for police departments to fund their budgets through lucrative drug busts.

The charges against him were also an affront to justice. The Brauns were just trying to make a living while working with the existing laws and offering a product the people wanted. The day when actual businesses (instead of non-profs) can sell marijuana is a day when humanity progresses.

Another reason to camp out at De la Guerra Plaza; legalize pot. When we forgive all of the world debt and destroy Wall Street food will be cheap, our free houses will have solar energy, our buds will be fat and full of resin, and racism will be eradicated forever on this earth. Viva la Revolucion! Vox Populi Vox Dio!Seriously, the pot laws are insane which is neither an argument for or against legalization or decriminalization. But judicial insanity sanctioned by self canceling laws is a lousy way to run a country.

Article VI, Clause 2 of the United States Constitution, known as Supremacy of National Law , establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law of any state.

Currently, the cultivation and sale of marijuana (medical or otherwise) violates federal law. Personally, though I do not indulge myself, all indications are that marijuana is much less dangerous to use than alcohol. That notwithstanding, when state and federal laws conflict, I find it a very dicy proposition to get into such a business. Beware!

I am not a lawyer, but I would certainly bring up the FACT that our federal government is cultivating and supplying medical marijuana to a small group of U.S. Citizens. Please read this article. What a contradiction!!!!

If you can find a way to translate "sanity, humanity and compassion" in order to trump the Constitution or States Rights, I'm right with you. Our tax codes are objectively beyond the scope of the Constitution but you still go to jail...Again, while I largely agree that pot should be de criminalized, you cannot blame the government if you knowingly violate something that is prohibited. Nobody MADE you start selling pot under frivolous city or state statutes that are superseded by idiotic federal law.